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Defense bills cause transparency jitters

Defense authorization bills winding their way through Congress are prompting alarm among transparency advocates over a series of proposals that would roll back the scope of decades-old sunshine laws, like the Freedom of Information Act.

The Senate Armed Services Committee marked up the NDAA last week. The proposal to alter exemption 2 of FOIA was not included in the bill the panel reported out last week, according to the office of the committee's ranking Democrat, Sen. Jack Reed (D-R.I.)

The language the Defense Department sought would restore the pre-2011 interpretation that prevailed in many lower courts for several decades before the Supreme Court's 8-1 decision that those lower courts had essentially invented the notion of that exemption (known as "high 2") out of whole cloth. The proposal allow agencies to withhold records that are "predominantly internal" if releasing them "could reasonably be expected to risk impairment of the effective operation of an agency or circumvention of statute or regulation."

The Supreme Court fight was over a request for information about ammunition depots in the Puget Sound area of Washington state. Records of their explosive potential were unclassified because they were shared with potential first-responders. When activists sought the data and maps to determine the dangers they faced, the Navy withheld the records under FOIA's Exemption 2, which applies to records "related solely to the internal personnel rules and practices of an agency."

The justices ruled the information clearly wasn't "related solely" to the Navy's activities and the court said Congress could fashion legislation to cover such situations if it was so inclined.

Some in the Obama administration have expressed concern about the ruling, but the avowedly pro-transparency administration has never formally endorsed a legislative proposal to address the 2011 high court decision. Agency legislative proposals are supposed to go through a government-wide approval process at the Office of Management and Budget, but it's unclear if the Defense Department's FOIA-related lanuage received such clearance.

"This is crazy. The way it's written any agency could create regulations to make almost any record exempt," the victorious plaintiff in the Supreme Court case, Glen Milner, said in an interview. "The whole way it is written is awful. ... I thought it was shocking to see it."

"DOD requesting it is troubling in itself, of course," Openthegovernment.org's Katherine Hawkins wrote in Sunday an online discussion of the proposal.

One potential roadblock for such a proposal is that to apply government-wide it would normally need to pass through the Senate Judiciary Committee.

A Judiciary spokeswoman said the proposal was shared with Chairman Chuck Grassley (R-Iowa), who declined to sign off on it and responded with written questions and a request for a Justice Department briefing on the potential impact of the legislative language.

"Until we learn the scope of the Justice Department's intentions with this proposal, it's premature to include it in the bill," Grassley said in a statement released to POLITICO Sunday.

Armed Services Committee Chairman John McCain (R-Ariz.) and ranking Democrat Jack Reed of Rhode Island did not immediately respond to requests for comment on the proposal.

The Pentagon's proposed version of the NDAA also contains a new provision that would allow the Defense Department to withhold from release under FOIA information on military tactics, techniques and procedures whenever disclosure "could risk impairment of the effective operation of the armed forces" and the information hasn't been disclosed publicly or hasn't been linked to a particular operation. The language could exempt from disclosure such information as revisions to interrogation procedures in the Army Field Manual.

Yet another DOD proposal would make it easier for the Pentagon to withhold information it receives from foreign governments or international organizations via the State Department.

All three DOD proposals are aimed at facilitating the withholding of unclassified information that could probably be classified, but which the Pentagon prefers to treat as unclassified for ease of handling and sharing. For now, none of them are in the Senate bill, a source said Monday.

On the House side, one counter-transparency proposal has already taken a step toward becoming law.

An amendment added to the House version of the NDAA on the floor last week contains a partial exemption to another longstanding sunshine law — the Federal Advisory Committee Act — for the National Commission on the Future of the Army. The amendment would exempt the up-to-eight member panel from meeting publicly and announcing meetings in advance when fewer than five members of the panel are meeting.

The amendment, introduced by House Armed Services Chairman Mac Thornberry, appears aimed at responding to criticism from the members of another military review panel — the National Commission on the Structure of the Air Force — that the Defense Department's interpretation of FACA had a "significant, and frequently negative, impact on the Commission’s work."

Proponents of the exemption for the Army commission intially sought a complete exemption for the panel, but backed down to a partial exemption after concerns were raise by the House Oversight and Government Reform committee, a Congressional source said.

Some on both sides of the aisle in Congress have argued that the problem with FACA is not that it is too onerous, but that various boards, panels and commissions have been avoiding it by doing all their substantive work in subcommittees claimed to be exempt from the law then quickly ratifying that work in brief open sessions. In addition, some agencies — including the White House — now routinely prevent the public and press from attending the "open" meetings in person and insist that a video feed of such sessions is adequate transparency.

Just Friday, Rep. William Lacy Clay (D-Mo.) reintroduced a FACA reform bill aimed at requiring subcommittee meetings to be open to the public. Such a measure passed the House in 2010, but failed to see floor action in the last two Congresses.

A markup of the legislation in early 2009 triggered fireworks between Republicans and Democrats after the GOP proposed an amendment making policy groups involving the first lady covered by the transparency provisions of FACA. Democrats said the amendment could be seen as an attack on Michelle Obama. The proposal was withdrawn and the overall legislation ultimately passed the House on a bipartisan vote, 250-124.

UPDATE (Monday, 6:55 A.M.): This post has been updated to reflect comments about the current status of the Senate bill.